- N.D.Ga.: Failure to specify how the R&R was deficient on PC finding was waiver
- Ga.Bar J.: Who Should Guard the Attorney-Client Privilege When Documents are Seized by Law Enforcement,
- OR: For particularity in electronic devices, specify what will be found
- W.D.N.C.: Traffic stop for expired tags went right to criminal history and was overlong
- ID rejects “reasonable mistake of law” and Heien under state constitution; state’s exclusionary rule is broader
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by John Wesley Hall
Criminal Defense Lawyer and
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Little Rock, Arkansas
Contact: forhall @ aol.com / The Book
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"If it was easy, everybody would be doing it. It isn't, and they don't."
“I am still learning.”
—Domenico Giuntalodi (but misattributed to Michelangelo Buonarroti (common phrase throughout 1500's)).
"Love work; hate mastery over others; and avoid intimacy with the government."
—Shemaya, in the Thalmud
"It is a pleasant world we live in, sir, a very pleasant world. There are bad people in it, Mr. Richard, but if there were no bad people, there would be no good lawyers."
—Charles Dickens, “The Old Curiosity Shop ... With a Frontispiece. From a Painting by Geo. Cattermole, Etc.” 255 (1848)
"A system of law that not only makes certain conduct criminal, but also lays down rules for the conduct of the authorities, often becomes complex in its application to individual cases, and will from time to time produce imperfect results, especially if one's attention is confined to the particular case at bar. Some criminals do go free because of the necessity of keeping government and its servants in their place. That is one of the costs of having and enforcing a Bill of Rights. This country is built on the assumption that the cost is worth paying, and that in the long run we are all both freer and safer if the Constitution is strictly enforced."
—Williams v. Nix, 700 F. 2d 1164, 1173 (8th Cir. 1983) (Richard Sheppard Arnold, J.), rev'd Nix v. Williams, 467 US. 431 (1984).
"The criminal goes free, if he must, but it is the law that sets him free. Nothing can destroy a government more quickly than its failure to observe its own laws, or worse, its disregard of the charter of its own existence."
—Mapp v. Ohio, 367 U.S. 643, 659 (1961).
"Any costs the exclusionary rule are costs imposed directly by the Fourth Amendment."
—Yale Kamisar, 86 Mich.L.Rev. 1, 36 n. 151 (1987).
"There have been powerful hydraulic pressures throughout our history that bear heavily on the Court to water down constitutional guarantees and give the police the upper hand. That hydraulic pressure has probably never been greater than it is today."
— Terry v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting).
"The great end, for which men entered into society, was to secure their property."
—Entick v. Carrington, 19 How.St.Tr. 1029, 1066, 95 Eng. Rep. 807 (C.P. 1765)
"It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. And so, while we are concerned here with a shabby defrauder, we must deal with his case in the context of what are really the great themes expressed by the Fourth Amendment."
—United States v. Rabinowitz, 339 U.S. 56, 69 (1950) (Frankfurter, J., dissenting)
"The course of true law pertaining to searches and seizures, as enunciated here, has not–to put it mildly–run smooth."
—Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J., concurring).
"A search is a search, even if it happens to disclose nothing but the bottom of a turntable."
—Arizona v. Hicks, 480 U.S. 321, 325 (1987)
"For the Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. ... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected."
—Katz v. United States, 389 U.S. 347, 351 (1967)
“Experience should teach us to be most on guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
—United States v. Olmstead, 277 U.S. 438, 479 (1925) (Brandeis, J., dissenting)
“Liberty—the freedom from unwarranted intrusion by government—is as easily lost through insistent nibbles by government officials who seek to do their jobs too well as by those whose purpose it is to oppress; the piranha can be as deadly as the shark.”
—United States v. $124,570, 873 F.2d 1240, 1246 (9th Cir. 1989)
"You can't always get what you want / But if you try sometimes / You just might find / You get what you need."
—Mick Jagger & Keith Richards
"In Germany, they first came for the communists, and I didn't speak up because I wasn't a communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jew. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics and I didn't speak up because I wasn't a Catholic. Then they came for me–and by that time there was nobody left to speak up."
—Martin Niemöller (1945) [he served seven years in a concentration camp]
“You know, most men would get discouraged by now. Fortunately for you, I am not most men!”"The point of the Fourth Amendment, which often is not grasped by zealous officers, is not that it denies law enforcement the support of the usual inferences which reasonable men draw from evidence. Its protection consists in requiring that those inferences be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime."
---Pepé Le Pew
—Johnson v. United States, 333 U.S. 10, 13-14 (1948)
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Category Archives: Nexus
D.Colo.: Date range isn’t always required by 4A for particularity of cell phone SW
In a cell phone search warrant, “Although Trujillo argues that the date range from May 16, 2022, to present lacked ‘legal justification,’ Trujillo provides no explanation or authority as to how this date range rendered the warrant unconstitutionally general. There … Continue reading
D.N.M.: A lesson in proving nexus for a SW for a house for evidence of a shooting incident happening elsewhere
A lesson in proving nexus for a search warrant for a house in a shooting incident elsewhere. United States v. Coriz, 2023 U.S. Dist. LEXIS 22857 (D.N.M. Feb. 10, 2023).* All warrant affidavits should be this good, and you can’t … Continue reading
CA6: Being a drug dealer is not per se nexus to one’s home; more required
Defendant was a drug dealer, but the affidavit for warrant did nothing to show a reason to believe (nexus) that drugs would be found at his house. No case in this circuit supports nexus on these facts. Moreover, the information … Continue reading
WY: In felony domestic battery case, state showed nexus that evidence could likely be found in def’s journal
Defendant was convicted of strangulation of a family member. The family member reported to the police that he had been in counseling and was keeping a detailed journal trying to break the cycle of domestic abuse. The affidavit for the … Continue reading
W.D.Ky.: Allowing theft from house after a search had a state remedy, so no § 1983 remedy
Plaintiff alleged the Sheriff’s Office, after a search, gave the keys to his place to a convicted felon who stole from him. He has a state remedy, not a § 1983 remedy. Stone v. Taylor Cty. Sheriff Dep’t, 2023 U.S. … Continue reading
S.D.Miss.: Even suppressed drugs can be figured into drug weight for sentencing
Even if a motion to suppress had been pursued and defendant prevailed, suppressed drug weight can be used at sentencing. United States v. Coleman, 2023 U.S. Dist. LEXIS 10826 (S.D. Miss. Jan. 23, 2023). Pro se plaintiffs fail to state … Continue reading
E.D.Pa.: Failure to specify in 2255 how 4A was violated is waiver
In a 2255 ineffective assistance claim, “Defendant fails to specify either how his Fourth Amendment rights were violated or what evidence counsel should have sought to suppress.” That alone is enough to deny. It’s denied on the merits, too. United … Continue reading
CA3: Going from home to a drug deal is nexus to the home
“Contrary to Torres’ arguments, when an individual is suspected of dealing narcotics, probable cause to search his home does not demand a showing that he deals those narcotics at his home. The common-sense likelihood that drug dealers keep evidence of … Continue reading
CA6: Erroneous LEO database info still justified stop
Officers had information from the state DL and LPN database that defendant’s car had no insurance. That justified the stop even if it turned out to be erroneous. United States v. Conley, 2023 U.S. App. LEXIS 856 (6th Cir. Jan. … Continue reading
CA6: Water heard running in hotel room bathroom supported exigency for avoiding destruction of evidence
Water heard running in the bathroom of a hotel room justified entry to avoid potential destruction of evidence. United States v. Hill, 2023 U.S. App. LEXIS 785 (6th Cir. Jan. 11, 2023). Defendant’s Franks challenge doesn’t undermine the two critical … Continue reading
CA5: No suppression for no-knock violation
There is no suppression remedy for an unjustified no-knock warrant. United States v. Bryant, 2023 U.S. App. LEXIS 355 (5th Cir. Jan. 6, 2023). Defendant didn’t enter a conditional plea, so his guilty plea waived his Fourth Amendment claim. United … Continue reading
CA6: Govt completely failed to show nexus or PC thus no GFE
The affidavits supporting the records warrant for defendant’s home did not establish nexus between his alleged drug activity, drug records, and his address. Also, the affidavit did not allege that defendant dealt drugs from the house or that he even … Continue reading
CA6: Affidavit circumstantially supported nexus
There was nexus to defendant’s home as a base of operations for drug sales based on circumstantial evidence in the affidavit for warrant. United States v. Pointer, 2022 U.S. App. LEXIS 35506 (6th Cir. Dec. 20, 2022).* The search warrant … Continue reading
W.D.Tenn.: Merely saying in SW affidavit drug dealers usually keep stuff at home isn’t nexus; but GFE applies anyway
Merely alleging in a search warrant application that drug dealers usually keep drugs at home does not satisfy the nexus requirement. It does, however, satisfy the good faith exception. Motion to suppress denied. United States v. Neal, 2022 U.S. Dist. … Continue reading
N.D.Ohio: Proving nexus to an alleged drug dealer’s home
Proving nexus to an alleged drug dealer’s home discussed in United States v. Stafford, 2022 U.S. Dist. LEXIS 210032 (N.D. Ohio Nov. 18, 2022):
N.D.Tex.: Officers don’t have to say they have PC before an automobile exception search
The officers didn’t say they had probable cause at the beginning of the search of the vehicle, but on the totality they did. United States v. Wesley, 2022 U.S. Dist. LEXIS 200320 (N.D. Tex. Nov. 3, 2022).* The Fourth Amendment … Continue reading